From human rights Board of Inquiry to Nova Scotia Court of Appeal, case against wrongful institutionalization continues

KJIPUKTUK (Halifax) – A Nova Scotia Human Rights Board of Inquiry was wrong when it denied the systemic causes underlying the institutionalization of people with disabilities in Nova Scotia. It was also wrong in how it determined the damages it awarded to three individual complainants.

That, in a nutshell, is the case against the province being argued in front of three Nova Scotia Court of Appeal judges today and tomorrow. Because of the pandemic the public cannot attend, but the case is live streamed.

The complainants include the three individuals or their estate, and the Disability Rights Coalition (DRC), a coalition consisting among others of People First Nova Scotia, the Nova Scotia Association for Community Living (NSACL), as well as individuals.

After days of often heart wrenching testimony Board chair Walter Thompson acknowledged In his March 2019 decision that the three complainants –  Beth MacLean, Sheila Livingstone and Joseph Delaney – individually suffered and faced prejudice. However, he did not believe that people who are housed in institutions as a group are facing systemic discrimination. Institutionalization in-and-of-itself is not discrimination, Thompson stated in his decision.

Denying the systemic nature of the discrimination means that the thousands of Nova Scotia citizens under very similar experiences as the three complainants have no choice but to initiate their own human rights case to find justice. As well, the ability to impose systemic changes at Community Services to address their often ongoing suffering remain out of reach as a result.  

In failing to recognize the systemic nature of the discrimination Thompson made legal errors, human rights lawyers Vince Calderhead and Claire McNeil argue.  The lawyers represent the three individuals and the DRC respectively at the Nova Scotia Court of Appeal, just like they did during the 35 days of hearings for the Board of Inquiry.

Much of the day was filled with references to case law, precedents, statutes and legal terminology, even a case at the United States Supreme Court was referenced. I am not a court reporter, and I can’t do justice to the legal subtleties that are part of the arguments presented in court today. That said, this is my understanding.

Second class treatment

The discriminatory nature of the department’s actions is revealed when we consider the different way Community Services accommodates able-bodied people in need as opposed to people who live with physical or intellectual disabilities, Calderhead and McNeil argue.

“This appeal is focused on the second class treatment received by people with disabilities in this province. This treatment, we say, is the antithesis of equality. It’s a form of discrimination that’s rooted in systemic practices, but it’s also rooted in a society designed around the needs of able bodied people. The needs of persons with disabilities (…) have been ignored, devalued, or relegated to a second class status. The adverse effects on people with disabilities are widespread and profound,” McNeil said. 

Specifically, support for able-bodied people in need through the Social Assistance Act are relatively immediate and predictable once found eligible and are provided where recipients live. In contrast, people with disabilities face years-long waiting lists for placements in community settings, and frequently are segregated and institutionalized against their will far away from their loved ones and community. Prioritization of cases seems random and arbitrary compared to how able-bodied people are treated. 

See also: Op-ed: Is the chair of the NS human rights board ‘un-woke’ or just unaware?

Failure to recognize these differences in treatment is what caused the Board’s denial of the systemic nature of the discrimination, McNeil and Calderhead argue. 

It’s the system that generated these differences. This tells us that these people are diminished. We wouldn’t stand for such differences in treatment if they were based on the colour of somebody’s skin or sexual preference, Calderhead said.

“Call me unwoke, but I don’t see anyone treating them poorly,” Thompson famously said earlier when rejecting the systemic aspect of their suffering. This remark reveals an actual antipathy to the notion of systemic discrimination, Calderhead remarked.

Compensation

In terms of compensation the chair of the Board said that because so many people are in similar situations it must temper the amount it awards. This devalues the experiences of the individuals, it’s a dismissive amount and it bears no relationship to the length of time the human rights violation continued, Calderhead said.

Thompson justified a further reduction in awarded compensation in light of the complainants’ disabilities. They don’t really need that money, bearing in mind that all they will use it for is maybe to buy an occasional chocolate bar or some smokes, Thompson said at the time. 

“In terms of devaluing experiences, I don’t think it can get much clearer than that,” Calderhead said.

Deterrence is a major consideration in deciding the amount, but the Board ignored that. This cultivates a culture of impunity, said Calderhead.

The Council of Canadians with Disabilities (CCD), the Canadian Association for Community Living (CACL), and People First Canada, organizations which were granted intervenor status, will get their say tomorrow as the case continues, as will the Province. 

See also: People with disabilities assert their rights in the Nova Scotia Court of Appeal

Oops. An earlier version referenced the Nova Scotia Supreme Court, rather than the Court of Appeal.

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